Terms and Conditions

First publication (v1): 21-01-2022. 
Second publication (v2): 04-05-2023

Applies to delivery of services and products.

This text has been translated. The Dutch version is leading.

Article 1. General/Definitions

In these general terms and conditions, the following terms shall have the following meanings:

  1. Contractor: &FLUENCE, located and having its office at Tournooiveld 5, 2511 CX Den Haag, Netherlands, registered with the Chamber of Commerce in The Hague under registration number 81952449 at the Chamber of Commerce and RSIN 863535768.

  2. Client: the party entering into an agreement with the Contractor, giving the Contractor an assignment, or to whom the Contractor has provided a quotation to which these general terms and conditions apply.

  3. Services: all services for which an assignment has been given or that the Contractor performs in connection with the agreement or quotation.

  4. General Terms and Conditions: these present general terms and conditions.

  5. Agreement or assignment: any agreement between the Client and the Contractor, as stipulated in the agreement and/or order confirmation.

Article 2. Applicability

  1. These general terms and conditions apply to the website, all agreements, and quotations in which the Contractor will provide services of any kind to the Client, even if these services are not (further) described in these terms and conditions.

  2. Deviations from these general terms and conditions are only valid if expressly agreed upon in writing. Any general terms and conditions or other terms of the Client are not valid, and their applicability is explicitly rejected by the Contractor.

  3. If any provision of these general terms and conditions is null and void or annulled, the other provisions of these general terms and conditions will remain in full force, and the Contractor and the Client will consult to establish new provisions to replace the null or annulled provisions, taking into account the purpose and intent of the null or annulled provision as much as possible. In case of ambiguity regarding the interpretation or content of one or more provisions of these general terms and conditions, they should be interpreted "in the spirit" of these general terms and conditions. Matters not regulated in these general terms and conditions should be assessed "in the spirit" of these general terms and conditions.

  4. If the Contractor does not always require strict compliance with these general terms and conditions, this does not mean that the provisions of these general terms and conditions are not applicable, or that the Contractor loses the right to require strict compliance with the provisions of these general terms and conditions in other cases.

  5. The Contractor is authorized to amend or supplement these general terms and conditions. Minor changes can be made at any time. Significant substantive changes will be discussed with the Client (in advance).

  6. The agreement is concluded as soon as the acceptance of the offer by the Contractor has been received. By accepting, the Client agrees to the applicability of these general terms and conditions and, if necessary, waives any applicability of its own general terms and conditions. Agreements will ultimately be documented in writing.

  7. If reservations or changes to the quotation are made in the acceptance, contrary to what is stipulated in the previous clause, the agreement will only be concluded if the Contractor has indicated to the Client that it agrees with these deviations from the quotation.

Article 3. Services

  1. The Contractor provides consultancy services as described in the quotation. Additionally, providing training and coaching to those making use of the above-mentioned services may be part of the services.

Article 4. Quotations and Offers

  1. A sent quotation or offer is valid for 15 (fifteen) days from the date, unless the Contractor states otherwise.

  2. If no acceptance period is specified, no rights can be derived from the quotation in any way.

  3. If the Client accepts a quotation, the Contractor reserves the right to revoke the offer within 2 working days after acceptance.

  4. The Contractor cannot be held to its quotations if it is reasonably clear that the quotation or any part of it contains an obvious mistake or typographical error.

  5. Quotation consisting of several services does not oblige the Contractor to perform a part of the assignment at a corresponding part of the quoted price.

  6. If the acceptance of the quotation differs, the Contractor is not bound by it. The agreement is only concluded according to this deviating acceptance if the Contractor indicates its agreement with these deviations from the quotation.

  7. Quotations provided are essentially price indications and do not automatically apply to future assignments.

Article 5. Assignment

  1. The agreement is entered into per assignment or for a specific period. For the assignment, it applies that as long as the assignment is not completed or one of the parties has not indicated the intention to terminate the agreement, it is presumed that the agreement is in effect. For contracts entered into for a specific period, it is necessary to mention the term in the agreement.

  2. If the agreement is entered into for a specific period, that term must be explicitly stated in the agreement.

  3. If the agreement is entered into for a specific period, that term has expired, and the Client has not given written notice of termination up to 2 (two) months before the term ends, the agreement will automatically be extended for an equal period.

  4. The notice period is two months for both the Client and the Contractor unless otherwise stated in the quotation.

  5. The agreement must be terminated in writing by registered letter or (scanned) email.

  6. For an assignment agreement with no specific period, the Client cannot terminate it without the express consent of the Contractor.

  7. If a specific term or delivery time for certain activities or services has been agreed upon or stated, it is never a strict deadline. If the deadline is exceeded, the Client must send a written notice to the Contractor to give a reasonable period to still fulfill the agreement.

Article 6. Formation of the Agreement

  1. The agreement is concluded when the Client accepts the offer and agrees to the Contractor's general terms and conditions.

  2. Agreements between the Contractor and the Client are made through the internet (email) or through written confirmation (letter).

  3. If the Client cancels the assignment or terminates the agreement without valid reasons, they are liable in accordance with these general terms and conditions.

  4. The Contractor reserves the right to reject an assignment without giving reasons.

  5. The Contractor is not bound by oral agreements unless they are confirmed in writing by the Contractor.

Article 7. Amendment of the Assignment

  1. If, during the execution of the agreement, it becomes necessary to amend or supplement the agreement, the parties shall make timely adjustments to the agreement through mutual consultation.

  2. Without being in breach of this, the Contractor may reject a request for changes, supplements, or withdrawal of the agreement if it could have consequences in terms of quality or quantity for the work to be performed in that context. The Contractor is then entitled to payment for the work performed under the original assignment.

  3. If the agreement is amended or supplemented, this may affect the time of completion of the execution. The Contractor will inform the Client of this as soon as possible.

  4. If the amendment or supplement to the agreement has financial and/or qualitative consequences, the Contractor will inform the Client in advance.

  5. If the amendment or supplement to the agreement is the result of circumstances that can be attributed to the Contractor, the Contractor will not charge additional costs. If the amendment or supplement to the agreement is the result of circumstances that can be attributed to the Client, the Contractor will charge additional costs.

Article 8. Cancellation or Premature Termination of the Assignment

  1. If the Client cancels a placed order in whole or in part, all incurred costs, hours spent on preparations and performance of the assignment, hours that the Contractor had reserved for the Client, and damage due to the cancellation will be charged to the Client.

  2. If the Client terminates the agreement prematurely, all incurred costs, hours spent on preparations and performance of the assignment, hours that the Contractor had reserved for the Client, and damage due to the termination will be charged to the Client.

  3. If the Client terminates the agreement prematurely, the Contractor may, without prejudice to its rights to compensation of actual loss and loss of profit, require the Client to pay 50% of the remaining fee for the work to be performed, unless the Client can show that the Contractor has suffered little or no loss or loss of profit.

  4. In the event of cancellation or premature termination of the assignment, the Client remains liable to the Contractor for the full payment of the agreed assignment price. All additional costs, including preparation and planning costs, will be charged to the Client.

  5. The Contractor is entitled to cancel the agreement without further notice of default if:

    a. The Client is granted a suspension of payments, is declared bankrupt, or applies for the termination of its business operations.

    b. The Client has decided to terminate or liquidate its business operations.

    c. The Client loses full legal capacity or dies.

    d. The Client does not fulfill any obligation from the agreement or does not fulfill it properly or on time.

    e. The Contractor, despite warnings, continues to perform activities that are (legally) prohibited or that contravene the code of conduct of the Contractor or that endanger public order or morals.

    f. The Contractor is prevented from fulfilling the agreement due to circumstances that cannot be attributed to the Contractor and for which the law does not place the risk with the Contractor.

Article 9. Fees

  1. The fee for the assignment is a fixed amount and is specified in the agreement.

  2. If, during the execution of the assignment, it is necessary to make more or fewer hours than agreed in advance, this will not result in a change to the fee.

  3. In addition to the fee, the Client is responsible for paying other costs incurred, which may include, but are not limited to, travel and accommodation expenses, in accordance with the agreement or provided quotations.

  4. The Client may not, in any case, suspend its payment obligations or make a setoff, in whole or in part.

  5. Payment of the fee will take place in two parts:

    a. A down payment of 50% must be paid upon signing the agreement.

    b. The remaining 50% must be paid within 14 days after completion of the assignment.

  6. If payment has not been received by the Contractor within the agreed payment term, the Client will be in default, and the Client will owe the statutory interest.

Article 10. Responsibility

  1. The Contractor will perform the assignment to the best of its knowledge and ability and in accordance with high standards.

  2. If, during the execution of the assignment, it appears that it is impossible to provide a qualitative and responsible solution, the Contractor will not proceed with the assignment. The Client will then be notified of the situation, and both parties will discuss the possible implications.

  3. The Contractor cannot be held responsible for the consequences of errors in documents or instructions provided by the Client.

  4. The Contractor is not liable for damages suffered by the Client, unless the damage is a direct result of an error or negligence on the part of the Contractor that can be attributed to the Contractor.

  5. If the Client is of the opinion that the Contractor is not fulfilling its contractual obligations, it must notify the Contractor in writing immediately. The notice must contain a clear description of the complaint.

  6. If the Client does not notify the Contractor in writing within 15 (fifteen) days after the Client could have known about the shortcomings, the right to file a complaint expires.

  7. The liability of the Contractor for damages is limited to the amount of the fee that the Contractor receives from the Client.

  8. If the Client's complaint is justified, the Contractor will have the opportunity to fulfill the agreement as agreed, unless this is impossible for the Contractor. The Client will then be eligible for a partial refund, not exceeding the amount of the fee.

  9. The Contractor will not be responsible for any form of consequential loss.

  10. If the Client or a third party without written permission from the Contractor performs changes to the work done by the Contractor, the Contractor will not be responsible for any errors in or defects of the work.

  11. The Contractor will not be responsible for any damage to or loss of data, regardless of whether the damage or loss occurs during transport or is caused by an interception of data.

Article 11. Suspension and Termination

  1. If the Client does not fulfill its obligations under the agreement, does so improperly, or fails to do so in a timely manner, or if the Client's business operations are terminated or liquidated, is granted a suspension of payments, or declared bankrupt, the Contractor is entitled to suspend the execution of the agreement or to terminate the agreement with immediate effect, without prior notice or judicial intervention.

  2. The Client will be held responsible for the entire damage suffered by the Contractor as a result of this termination.

  3. Termination or suspension of the agreement does not affect the payment obligations of the Client, and the Client will be held responsible for the entire damage suffered by the Contractor.

  4. If the Contractor proceeds to termination, any claims the Contractor may have on the Client will become immediately due and payable.

  5. If the Contractor decides to dissolve the agreement, the Contractor will not be obliged to refund any payments received from the Client.

  6. If the Client cancels the assignment or terminates the agreement without valid reasons, all incurred costs, hours spent on preparations and performance of the assignment, hours that the Contractor had reserved for the Client, and damage due to the cancellation will be charged to the Client.

  7. If the Client terminates the agreement prematurely, all incurred costs, hours spent on preparations and performance of the assignment, hours that the Contractor had reserved for the Client, and damage due to the termination will be charged to the Client.

Article 12. Force Majeure

  1. The Contractor is not obliged to fulfill any obligation towards the Client if they are hindered from doing so as a result of circumstances that are not attributable to fault, and which are neither governed by law, a legal act, or prevailing views in the industry.

  2. Force majeure, as referred to in these general terms and conditions, includes, in addition to what is understood in this regard in law and jurisprudence, all external causes, whether foreseen or unforeseen, over which the Contractor has no influence but which prevent the Contractor from fulfilling their obligations. This includes, among other things, hindrance of persons or resources provided by third parties for the execution of the assignment, for example, due to illness.

  3. In the event of force majeure, the Client shall promptly inform the Contractor in writing, indicating the cause of the force majeure.

  4. The Contractor is entitled to suspend the performance of the contract during the period of force majeure. If this period lasts longer than one month, both the Client and the Contractor are entitled to dissolve the contract, without the obligation to pay compensation for any damage suffered by the other party. If the above-mentioned situation occurs when the contract has been partially performed, the Contractor is entitled to separately invoice the already performed part. The Client is then obliged to pay this invoice as if it were a separate contract.

  5. After the notification of force majeure by the Contractor, the Client has the right to cancel the assignment in writing.

Article 13. Liability

  1. The liability of the Contractor is limited to damage that can be considered as an immediate and direct consequence of non-compliance or inadequate compliance.

  2. If the Contractor is liable, this liability is limited to what is regulated in this provision.

  3. If the Contractor is liable for any damage, this liability is limited to a maximum of half of the monetary invoice value, or the part of the assignment from which the liability arises.

  4. For long-term assignments (contract duration exceeding 4 months), liability is limited to a maximum of the invoice value for two calendar months.

  5. The obligation to pay compensation for damages resulting from liability on the part of the Contractor shall in any case never be greater than the amount of the payment made by the Contractor's insurer in that case, increased by the deductible of the Contractor.

  6. The Contractor is never liable for indirect damage. Indirect damage includes consequential damage, loss of profit, savings missed, and damage due to business or other types of stagnation.

  7. The Contractor shall never be liable for damage resulting from defects in work carried out by third parties or for goods delivered by third parties.

  8. The limitations of liability included in these conditions do not apply if the damage is due to intent or gross negligence on the part of the Contractor and/or their subordinates.

  9. The Client is obliged to report the damage to the Contractor within 3 months of becoming aware of it.

  10. Regarding the work performed, it is an obligation of effort and not a result obligation.

Article 14. Intellectual Property

  1. The Contractor retains the rights and powers that accrue to them based on the Copyright Act and other intellectual property laws and regulations. The Contractor has the right to use the increased knowledge gained through the execution of an agreement for other purposes, insofar as no strictly confidential information of the Client is disclosed to third parties.

Article 15. Applicable Law

  1. Unless expressly agreed otherwise, disputes arising from the agreement are subject to Dutch law.

  2. Without prejudice to the Contractor's right to submit a dispute to the competent court under the law, disputes between the parties will initially be submitted to the competent court in the place of establishment of the Contractor, unless the law expressly prescribes otherwise.